Council votes to keep city attorney out of appeal

This story was corrected on March 17, 2010. An explanation follows the story.

After a late night closed session Monday, a split City Council directed the city attorney to stay out of an administrative appeal filed against the Rockville Board of Appeals and an affordable senior housing project planned for Rockville.

The Board of Appeals in January approved the construction of Victory Court, an 86-unit, four-story apartment building bounded by Fleet and Monroe streets and Maryland Avenue. Victory Housing, the development arm of the Catholic Archdiocese of Washington, D.C., is building Victory Court.

A group of 15 residents from the surrounding area filed a notice of appeal on Feb. 16 challenging the board's decision. It will be reviewed by the Montgomery County Circuit Court.

The reason for the appeal was not public by press time Tuesday.

Noreen Bryan, a party to the appeal, said Tuesday that she did not want to comment on the content of the appeal because arguments are still being developed.

"Some citizens opposed to Victory Housing have filed a protest with our Board of Appeals' decision," Mayor Phyllis R. Marcuccio said. "The question for us was whether the city attorney should get involved in defending the Board of Appeals. We said to our attorney, Don't get involved.'"

Marcuccio voted with council members Piotr Gajewski and Bridget D. Newton on the issue.

She said she did not feel like the interests of the residents opposed to the project had their concerns adequately addressed in front of the appeals board.

Newton said she has been "very disappointed with how staff has directed the Board of Appeals."

She added, "This is in no way a vote against Victory Housing. It's a vote for the needs and concerns of the residents that, as stated in the master plan, should be given priority."

Gajewski said he felt the city's only interest should be getting a "just result" from the judicial review.

Councilmen John Britton and Mark Pierzchala voted to have the city attorney get involved on behalf of appeals board.

"I think it's important the city get involved in these things to make sure the city's interest is protected," Britton said. "It's also important to support our boards and commissions unless something egregious went wrong, and I don't think that's the case here."

Pierzchala said there simply was not enough information about why the review was filed to take a chance by not involving the city attorney.

"It's just premature," he said. "We can't depend on others to defend the city's interests."

Alan Sternstein, chairman of the Board of Appeals, said he was disappointed by the council's decision.

"That is a very disappointing action, but not surprising in a city where elections are decided by margins of a few hundred votes," he wrote in an e-mail to the Gazette Tuesday. "More importantly, however, it is a decision that has profound implications, legally and practically, for the relationship between the city and its volunteer boards and commissions."

All interested parties had ample opportunity for input, he added.

Jody S. Kline, the Rockville attorney listed in online court documents as representing Victory Housing, did not return calls for comment by Gazette press time. No lawyer information was yet available for the Board of Appeals.